5. What is the process for executing an arrest?
Law enforcement officers generally carry out arrests. There must be “probable cause” for a government official to make an arrest. This may include observance of the criminal activity or based upon reliable evidence. If an officer does not witness the illegal conduct or have immediate evidence in her possession regarding the commission of the crime, she must generally seek an arrest warrant prior to arresting a suspect. A judicial officer (generally a magistrate judge) must hear evidence and make a determination as to whether probable cause exists to arrest someone. If the magistrate determines that probable cause exists, she will issue an arrest warrant that empowers the police to arrest the individual. The police must execute the arrest warrant within the terms of the authority granted by the judicial officer.
• Discussion: Why do you think a judicially issued warrant is required to make an arrest if the officer does not witness the criminal conduct? Why is a warrant not required when the officer witnesses the criminal conduct? Do officers ever make arrests without personally witnessing criminal conduct? How close in time must the criminal conduct be to the arrest to justify an arrest without a warrant? Do officers ever exceed there authority when making an arrest? What should be the repercussions of making an arrest without a warrant when a valid warrant should be required?
• Practice Question: Jane witnesses Frederick committing a crime. She chases after Frederick, but he is too fast and escapes. What process must Jane follow in order to effectuate an arrest of Frederick?